Hall v. Imperial Water Co. No. 3

THE COURT.

—This is a motion to dismiss each of two appeals herein on the ground that the orders appealed from are not appealable orders. By stipulation of the parties, said two appeals have been consolidated.

On May 10, 1917, the appellant instituted a separate action against each of the above-named respondents in the superior court of the county of Imperial to recover damages for injuries to her land, alleged

to have

been caused by the seepage of water from the irrigation canals of said respondents. Judgment was entered in each of said actions on July 1, 1924, awarding damages to the appellant, and thereafter, on July 7, 1924, she filed a notice of motion for new trial in each cause. Among other grounds, the notices stated that the respective motions would be based on the alleged disqualification of the trial judge to hear said causes. The motions for new trial, however, were never made in open court. The time within which appeals from the judgments might be perfected and within which proceedings on motion for new trial would have to be determined has elapsed without any steps having been taken by the appellant in those directions other than as above indicated. Subsequently, and on February 18, 1925, approximately seven and one-half months after said judgments were entered, appellant served

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and filed notices of motion to vacate and set aside each of said judgments on the ground that the judge who tried the causes was disqualified by reason of his owning real property in the Imperial Irrigation District. These latter motions came on for hearing in the court below on March 27, 1925, and were denied on May 29, 1925, by Honorable M. S. Marsh, Judge of the superior court of the county of San Diego, sitting as a judge of the superior court of the county of Imperial. As already indicated, the appeals herein are from the orders denying said motions to vacate and set aside the judgments in the above-entitled causes.

Eespondcnts move to dismiss the consolidated appeals on the ground that an order refusing to vacate and set aside a judgment is not an appealable order. It is contended that there are but two exceptions to this rule, namely, where the matter specified in the motion to vacate could not have been reviewed on an appeal from .the judgment and where the judgment affects injuriously one who is not a formal party to the action or, if a party, he has not received due notice so that the judgment as to him has been given improperly and